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Child Sexual Assault Deferred Adjudication Sentence

Is Deferred Adjudication an Authorized Sentence if Victim is 3 Years-Old?

By | Sex Crimes

Trial Judge Properly Imposed Deferred Adjudication in Sexual Assault Case, says CCA

Child Sexual Assault Deferred Adjudication SentenceAnthony v. State (Texas Court of Criminal Appeals, 2016)

Note: This article contains sensitive subject matter dealing with the sexual assault of a minor.

Defendant Pleads Guilty to Sexual Assault Allegations in Exchange for Deferred Adjudication

In 2009, John Anthony was indicted for aggravated sexual assault of a child under fourteen years old. In a plea agreement, Anthony pleaded guilty to the charge in exchange for the prosecution’s recommendation of deferred-adjudication with community supervision. Generally speaking, deferred-adjudication is a type of probation in which a defendant enters a plea of guilty, but the judge defers the ruling for a set amount of time. If the set amount of time passes without further criminal activity or other technical violations by the defendant, the judge sets aside the plea and dismisses the case. For Anthony, the trial judge ordered a deferred period of eight years.  During this time, the defendant would remain on community supervision, under the watch of a probation officer. The judge listed the victim’s age as three years old on the official trial judge’s order for deferred adjudication—not “under fourteen years old” as was listed on Anthony’s indictment.

Several years passed until 2013, when the State moved to adjudicate because Anthony allegedly violated his community supervision directives. Finding the new allegations to be true, the judge adjudicated Anthony guilty and sentenced him to life in prison. Once again, the judgment listed the victim’s age as three years old, not fourteen years old as was listed on Anthony’s original indictment.

Age Discrepancy on Judge’s Orders Leads to Sentence Reversal

Anthony appealed his adjudicated sentence with court-appointed counsel, who eventually filed an Anders brief. See Anders v. California, 386 U.S. 738 (1967). While reviewing the Anders brief, the court of appeals became concerned about the discrepancy in the victim’s age listed on the judge’s orders and on the original indictment. Specifically, the court of appeals was concerned that the trial court’s “finding” that the victim was three years old meant that under section 42.12 of the Texas Code of Criminal Procedure, the trial judge was entirely precluded from imposing deferred adjudication in the first place. TEX. CODE CRIM. PROC. Art. 42.12, § 5(d)(3)(B) (West 2006 & Supp. 2015). Additionally, the court of appeals was concerned that the age discrepancy error led to a potential flaw in sentencing. Further, the sentencing flaw potentially pointed to the fact that Anthony’s trial counsel could have been ineffective, possibly inducing Anthony into pleading “guilty” to a deal that should have never been made at all. Accordingly, the court of appeals reversed the trial court’s judgment. The State petitioned the Court of Criminal Appeals to review the case.

Can the Trial Court Place a Defendant on Deferred Adjudication for a Sexual Offense involving a 3 Year-Old Victim?

Now, the Court of Criminal Appeals must determine whether the potential age discrepancy error on the original indictment and on the trial judge’s orders created a procedural error during sentencing, possibly leading to ineffective assistance of counsel. If the age discrepancy is problematic procedurally, what should happen to Anthony’s original sentence?

Here, the Court of Criminal Appeals says that the trial judge properly imposed deferred adjudication. Because the indictment read that the victim was “younger than fourteen years old” and because there is nothing in the trial record to indicate that the State intended to prosecute under more stringent statutes with more stringent punishment guidelines, the CCA holds that the original sentence is proper. Further, the CCA deems Anthony’s previous trial counsel to be effective. Accordingly, the CCA strikes the “three year old” victim language in the trial court’s order, amending the language to reflect that the victim, “was younger than fourteen years of age at the time of the offense.” TEX. CODE CRIM. PROC. art. 42.015(b); TEX. R. APP. P. 78.1(c). Anthony’s sentence of life imprisonment stands because his deferred adjudication was properly imposed in 2009.

Juvenile Sex Offender Conditions

Strict Monitoring of Juvenile Sex Offender Internet Usage is a “Heavy Burden,” says Fifth Circuit

By | Sex Crimes

In United States v. Sealed Juvenile, the 5th Circuit Court of Appeals discusses how much oversight is too much when it comes to juvenile sex offenses.

Juvenile Sex Offender ConditionsPlease note: This article discusses sexual abuse of a child. Generally speaking, the reason the court system treats juveniles differently from adults is because of the hope of rehabilitation and restoration of the juvenile offender to society. With everything from school to job searching on the internet these days, should juvenile sex offenders be able to be on the internet? Is strictly monitoring a juvenile sex offender’s internet usage, down to the keystroke, an imposition on constitutional rights, or is society providing oversight to a juvenile defendant with the hope of rehabilitation?

A Juvenile Sexual Assault Occurs on a Military Base

While living with his family on a military base, a fifteen-year-old sexually assaulted a four-year-old. He was charged with violating 18 U.S.C. §§2241(c), 5032 (2012), “engaging in a sexual act with a person who had not attained the age of 12 years.” The juvenile defendant had a history of psychiatric illnesses, such as Oppositional Defiant Disorder and Bipolar disorder. He had a pattern of sending sexually explicit letters to classmates at school. Before sentencing the district court ordered a probation officer to render a special report, which concluded, “in the last year the juvenile’s problems transformed from being anger-oriented to being sexually-oriented.” In a plea agreement, the juvenile pleaded guilty to a lesser offense of “abusive sexual conduct with a minor who had not attained the age of 12 years,” violations of 18 U.S.C. § 2244(a)(5) (2012) and §5032.

The District Court Imposes Strict Sex Offender Conditions to Probation

The district court deemed the defendant a “juvenile delinquent” and sentenced him to eighteen months in a juvenile treatment facility and a term of juvenile delinquent supervision until he turned twenty-one. Further, the district court imposed four special conditions to his supervision

  1. a restriction on the defendant’s contact with children,
  2. choice of occupation,
  3. prohibition on loitering in specific places, and
  4. the use of computers and internet.

The juvenile appealed to the Court of Appeals for the Fifth Circuit, arguing that the district court had not provided adequate reasons for imposing the special conditions at the sentencing hearing, and failed to explain how the special conditions were reasonably related to the offense.

Under 18 U.S.C. § 3563(b), courts may place discretionary conditions on probation, so long as the conditions are reasonably related to the factors set forth in such deprivations of liberty or property and are reasonably necessary. In doing so, the sentencing court must consider the nature and circumstances of the offenses and the “history and characteristics of the defendant.” 18 U.S.C. § 3553(a)(1)(2) (2012).

The Big Issue Before the Fifth Circuit | Were the Special Conditions of Probation Reasonably Related to the Offense?

The big issue before the Fifth Circuit was whether the conditions imposed by the district court were reasonably related to the offense, and if so, were they reasonably necessary. Did the district court provide adequate reasons for imposing the four special conditions? As the case was a matter of first impression, the Court examined each special condition and concluded in a surprising manner with regard to the internet and computer use.

Condition One: Restriction on Contact with Children

Under the first special condition, the juvenile was “not to have contact with children under the age of sixteen without prior written permission of the Probation Officer.” Further, he was required to “report unauthorized contact with children to the Probation Officer.” On appeal, the juvenile argued that this special condition was a “much greater deprivation of liberty…than reasonably necessary.” However, the Court disagreed with the juvenile. “Considering the threat posed by the juvenile based on his conviction [and other noted behaviors on record], we affirm this condition.” Also noting that the juvenile could attend school with permission of the Probation Officer, the Fifth Circuit agreed with the lower court.

Condition Two: Choice of Occupation

Under the second special condition, the juvenile was “restricted from engaging in an occupation where he has access to children, without prior approval of the Probation Officer.” On appeal, the juvenile argued that the special condition was not reasonable and necessary because the offense was not related to work and that he would run a risk of never being able to be employed. The Court disagreed because the juvenile would be able to work upon prior permission from his Probation Officer. The Court affirmed the district court’s condition.

Condition Three: Prohibition on Loitering in Specific Places

Under the third special condition, the juvenile was not to “loiter within one-hundred feet of schools, parks, playgrounds, arcades, or other places primarily used by children under the age of sixteen.” The juvenile argued that the special condition was not reasonably related to his offense because his offense did not occur at a school. The Court disagreed. “The juvenile’s history of sending sexually explicit letters to girls at school means that he poses a threat to children at school.” The Fifth Circuit affirmed the lower court’s special condition.

Condition Four: Computer and Internet Use

Under the fourth special condition, the juvenile was (1) not to possess a computer with internet access without the prior approval of the Probation Officer; (2) to submit to searches under the direction of the Probation Officer that could include software scans of his technological devices; (3) to consent to a key logger on his personal devices and to consent to a search of each internet query; (4) to inventory and to provide receipts for all devices and bills pertaining to the internet and technology.

The juvenile argued that the restrictions on his computer and internet use were not reasonably related to his offense, and that the special condition would prevent him from job searching, completing homework, and emailing his therapists. The juvenile argued that even though he could access the internet, to do so would place a heavy burden on him to request permission each time he accessed the internet, or to report any misstep such as an errant search or a “pop up” on the internet.

The Fifth Circuit points out that the juvenile is mentally ill and needs some internet oversight. “We affirm the monitoring provisions because we recognize [they] ensur[e] that the juvenile complies with the restrictions against accessing sexually explicit materials.”

However, the Fifth Circuit agreed with the juvenile on some of the internet and computer usage restrictions. “We must recognize that access to computers and the Internet is essential to functioning in today’s society.” The Fifth Circuit ordered the district court to construe the special condition so that the juvenile does not have to request permission from a Probation Officer each time he accesses the internet, removing what the Court deemed “a heavy burden” on the juvenile. Next, the Court modified the special condition that required the juvenile to provide receipts and payment records to the Probation Officer, “because the purpose is to verify that there have been no payments to an internet service provider, and payment for proper use should be made by the juvenile…there is no other basis to justify the restriction imposed by the [special condition].”

In sum, while the Fifth Circuit mostly affirmed the district court’s holding, it made some significant modifications where technology is concerned. Speaking to the hope of future rehabilitation, the Court added, “the juvenile may seek modification to any of the conditions, and the district court may lessen the burden of the [special conditions] if [his] behavior improves over time.”

Statutory Rape Texas

The Statutory Rape Dilemma in Texas

By | Sex Crimes

Statutory Rape TexasOf the various types of criminal cases we defend in Fort Worth, Texas, Statutory Rape can be one of the more frustrating. First, a word of clarification; the term “Statutory Rape” does not actually appear in the Texas Penal Code. What I refer to as Statutory Rape is actually Sexual Assault of a person under 17 years of age (and over 14 years of age) under Section 22.011(a)(2). To understand what I mean about our frustration, consider this example (based on a true story).

The Story of Sam | A Common Statutory Rape Example

A 22 year-old attractive young man, let’s call him Sam, is filling up his car (a BMW) at a gas station when an attractive young woman (Nadia) approaches him and tells him how she admires his car. Nadia then tells Sam that she thinks he is cute and gives Sam her phone number. Nadia is younger than Sam, but he’s not exactly sure how much younger. She is fully developed and is dressed in mature clothing. Over the next few days Nadia and Sam send each other text messages. The messages are flirty at first and then Nadia turns the conversation toward sexual things. Sam is a bit surprised by how forward Nadia is, but he welcomes the banter. Sam then asks Nadia how old she is because he’s always heard the old adage “16’ll get ya 20.” Nadia tells Sam that she is 18 and says that she’ll show him an ID indicating the same when they get together. She then asks Sam to come pick her up in his BMW and take her to a park near her house. Sam agrees.

At the park, Nadia shows Sam her Texas ID, which says that she is indeed 18 years old. Sam and Nadia then engage in consensual sex, after which Sam takes Nadia home. Sometime during the next few days, Nadia’s mother gets ahold of her cell phone and notices the messages between her and Sam. When she confronts Nadia, Nadia admits that she and Sam had sex. Nadia’s mother is furious and calls the police to report Sam for child sexual assault. The police conduct a quick investigation wherein Sam admits to having sex with Nadia. After all, he thought he was doing nothing wrong since she was 18. The police then arrest Sam for statutory rape for having consensual sex with a 16 year-old. Nadia is only 16.

Statutory Rape is a Strict-Liability Offense

Statutory rape (Sexual Assault under Texas Penal Code Section 22.011(a)(2)) is a strict liability offense in Texas. What does this mean? It means that a person is guilty if:

  1. The person is older than 18 years of age; and
  2. The person intentionally or knowingly has sex with someone younger than 17 years of age.

*There is an exception to the law is the actors are less than 3 years apart in age, meaning that if the minor is 16 and the partner is 19 (but not more than 3 years older) then he will not be charged.

Other than the 3-year age gap exception, there are no other exceptions to statutory rape in Texas, hence strict liability. There is no Consent defense; consent is irrelevant for this offense. There is not Mistake of Fact defense when the minor lies about her age and no Mistake of Law defense for when the actors don’t know what the age of consent is in Texas. That is why we call this one of the more frustrating offenses in the Texas Penal Code.

Let’s take Sam’s case. Sam genuinely had no idea that Nadia was only 16. In fact, short of asking for her birth certificate, he showed due diligence in finding out her age before they had sex. He asked about her age and even saw her identification, which we now know was a fake ID. How can the state punish Sam when he tried to do everything right (fornication arguments aside)?

We often encounter this scenario or one like it. Our Fort Worth sexual assault defense attorneys have been able to get charges reduced under these circumstances. Many times, if we are hired before the grand jury considers the case, we will request to make a presentation to the grand jury and highlight these facts, urging the grand jury to no-bill the case and dismiss it. When we are negotiating with prosecutors on these types of cases, we do everything we can to get the charge amended to a different offense that doesn’t require sex offender registration (e.g. Injury to a Child). We have had considerable success in doing this, but it can be fact dependent (and personality dependent).

Sex Offender Registration for Consensual Sex with a Minor

Make no mistake; a conviction for statutory rape requires the offender to register as a sex offender in Texas. In fact, Statutory Rape is a lifetime registration offense. So although it may seem like a minor offense based on an age technicality, it is terribly serious. Further, even if your attorney is able to get your case reduced to a non-sex offense and you do not have to register as a sex offender, the court might still require you to undergo sex offender caseload on probation. You should fight this requirement as the sex offender caseload can be extremely difficult (and frustrating), especially when you never had the intent to commit a crime in the first place.

Free Consultation with a Fort Worth Statutory Rape Defense Attorney

If you are under investigation or have been charged with a Statutory Rape offense, contact our team of Tarrant County criminal defense attorneys. Our attorneys have the knowledge and experience to defend your future and your name with care and compassion. Contact us today at (817) 993-9249.

Sex Offender Passport Law

New Law Requires Certain Sex Offenders to Have Identifying Mark on Their Passports

By | Sex Crimes

Sex Offender Passport LawOn February 8, 2016, President Obama signed International Megan’s Law after it unanimously passed in Congress. International Megan’s Law has been put into place to prevent child exploitation and other sexual crimes through advanced notification of traveling sex offenders. The law will implement new notification requirements for sex offenders as well as require unique identifying marks on sex offender’s passports.

Read the language of the bill here.

Who is Required to Have an Identifying Mark on Their Passport under the International Megan’s Law?

The new law provides two categories of “covered” sexual offenders that will have to have this mark on their passport:

  1. Sex offenders convicted of a sex offense against a minor; and
  2. Any individual that is required to register in the sex offender registry of any jurisdiction in the National Sex Offender Registry because of an offense against a minor.

What Are the New Requirements for Sex Offenders Traveling Abroad?

Covered sex offenders must now provide to the appropriate official any information relating to their intended travel outside of the United States, including anticipated dates and all flight information, address or other contact information while outside of the U.S., purpose for travel, and any other travel-related information. The sex offender must update any changes to this information. If a sex offender knowingly fails to provide such information they shall be fined, imprisoned for not more than 10 years, or both.

What Will Occur When Sex Offenders Decide to Travel Abroad?

The Angel Watch Center will be established to perform activities required by the law to gain information on sex offenders traveling abroad. The Center, not later than 48 hours before scheduled departure, will use all relevant databases, systems and sources of information to:

  • Determine if individuals traveling abroad are listed on the National Sex Offender Registry
  • Review lists of individuals who have provided advanced notice of international travel, and
  • Provide a list of those individuals to the United States Marshals Service’s National Sex Offender Targeting Center (Targeting Center) not in the system to determine compliance with sex offender registration requirements.

When Will Advanced Notice Be Given to Destination Countries?

The Center may give relevant information to an individual’s destination country if the individual was identified as having provided advanced notice of international travel, or if after completing the Center’s activities described above, the Center receives information pertaining to a sex offender from the Targeting Center.

Additionally, the Center may immediately give relevant information to the destination country if the Center becomes aware of a sex offender traveling outside of the U.S. within 24 hours of their intended travel and simultaneously completes the Center’s activities, or if within 24 hours of intended travel, the Center has not yet received the information pertaining to the sex offender from the Targeting Center.

What is the Process for Issuing Passports to Sex Offenders?

The Secretary of State cannot issue a passport to a covered sex offender unless the passport contains a unique identifier. Further, a passport previously issued without an identifier may be revoked. The unique identifier has not been determined yet.

The Secretary of State may reissue a passport without a unique identifier if an individual reapplies for a passport and the Angel Watch Center provides written determination that the individual is no longer required to register as a covered sex offender.

What About Sex Offenders Entering Into the United States?

Upon receiving notification that an individual who has committed an offense of a sexual nature is attempting to enter the United States, the Center will immediately share all of the information on the individual with the Department of Justice and other Federal, State, and local entities as appropriate.


Under this new law, sex offenders who have committed offenses pertaining to a minor child will now be required to give notification of any intended international travel and will likely have to have a passport with a unique identifying mark. Sex offenders who already have passports should be prepared for reissuance of one with the identifying mark. This mark will alert officials that this individual has committed an offense against a child. Further, destination countries will be notified of any relevant information on the sex offender. It is important to stay up to date on the requirements and implications set forth by International Megan’s Law to avoid any unintentional violations of the new requirements.

The law is still new and right now there are more questions than answers.  Interested parties should be diligent to stay informed as the implementation of this law is rolled out.

Texas Sex Trafficking Statute

Is Texas’ Sex Trafficking Statute Overbroad?

By | Sex Crimes

Appellate Court Raises a Constitutional Eyebrow at Texas’ Sex Trafficking Statute

Texas Sex Trafficking StatuteRobert Francis Ritz met a young girl on an online dating website. She was fourteen years old at the time while Ritz was Forty-four. The two began to meet up in person and began to have a sexual relationship. Ritz would pick the girl up from her parents’ house, drive her back to his house, have sex, and then drop her back off at her house. For this conduct, a jury found appellant Ritz guilty of continuous sex trafficking and assessed punishment at life in prison. Ritz appealed to the 3rd District Court of Appeals in Austin.

See the court’s opinion in Ritz v. State

How Does the Texas Penal Code Define Sex Trafficking?

The Texas Penal Code provides that a person commits continuous trafficking of persons “if, during a period that is 30 or more days in duration, the person engages two or more times in conduct that constitutes an offense under Section 20A.02 [trafficking of persons] against one or more victims.” Tex. Penal Code § 20A.03(a). A person commits trafficking of persons “if the person knowingly . . . traffics a child and by any means causes the trafficked child to engage in, or become the victim of, conduct prohibited by” an enumerated section of the Penal Code. Id. § 20A.02(a)(7). The Penal Code also provides that “‘[t]raffic’ means to transport, entice, recruit, harbor, provide, or otherwise obtain another person by any means.” Id. § 20A.01(4).

Under this broad language, Ritz falls into this category. Ritz argues, however, that he did not traffic this girl and should not be found guilty of human sex trafficking. He argues that the legislature surely did not intend this anti-human-trafficking statute to apply to cases like this where there is no “illegal trade of human beings for profit or for sex trafficking.” Further, he argues that this outcome would lead to “absurd consequences” and increase the punishment range for all sexual offenses involving a minor.

Essentially, Ritz is argued on appeal that this statute was intended for people trading other humans, not for a person driving a girl around so they can have sex together. The Court of Appeals concedes that although this act is “reprehensible,” it is not what is normally thought of as human trafficking because there was no organized crime, prostitution, or forced labor. The court also concedes that the language in the statute may be so broad that nearly every adult who has sex with a minor will be considered a human trafficker.

Nonetheless, the court concludes that as long as this statute is constitutional, then they must enforce it as it was written and not how it should have been written. The court also offers that it could have been possible that the legislature did want to increase the penalties for persons who commit sexual crimes with minors under the “trafficking” umbrella.

Effectively after this case, most every person who has committed a sexual crime with a minor will be eligible to be punished under the trafficking umbrella which faces harsh penalties as seen here. The court noted that Ritz did not challenge the constitutionality of the statute so the court did not look into it. Attorneys facing this same dilemma might raise this constitutional argument to have a better chance on appeal.

Child Sexual Assault Grooming Texas

CCA Recognizes “Grooming” as a Legitimate Subject of Expert Testimony

By | Sex Crimes

Child Sexual Assault Grooming TexasToday, in Morris v. State, a 6-3 opinion authored by Presiding Judge Keller, the Texas Court of Criminal Appeals held (by taking judicial notice) that “‘grooming’ of children for sexual molestation is a legitimate subject of expert testimony.”  The opinion, which reads like a law review article at times, goes into great detail about the state and federal courts that have long recognized “grooming” as an appropriate (and helpful) area for expert testimony. (If you don’t know what “grooming” is, HERE is the Wikipedia definition.)

Judge Price’s Dissent is highly critical:

After doing the vast bulk of the research for the State, the Court now essentially holds (despite the absence of any actual litigation on the subject below) that case law from other jurisdictions demonstrates that grooming is such a well-established psychological concept that the State, as proponent of the grooming-based testimony here, need not have been required to prove it at all.

Believing the trial record too bare for the Court to take judicial notice of the reliability of grooming-based testimony, Judge Price dissents.  Judges Meyers and Womack joined the dissent.

Judge Meyers also dissented, stating:

Irrespective of whether the study of “grooming” behavior is a legitimate field of expertise, I do not think [the expert in this case] was qualified to be an expert on this issue. He had no degree in any field of study involving human behavior, no specialized training in “grooming” behavior, and he did not show that the training and experience he did have enabled him to distinguish such behavior.

Judges Womack and Price joined the dissent.

Judge Cochran concurred in the judgment and would hold that grooming is an experiential field rather than a “soft science”:

This is not rocket science. It does not depend upon any scientific, technical, or psychological principles or methodology. This type of testimony does not depend upon educational expertise, any calculable rate of error, learned treatises, peer review, or any other esoteric skill. This is not even “soft science.” It is just “horse sense” expertise developed over many years of personal experience and observation.

While they all seem to agree that “grooming” is an appropriate area for expert testimony, the lingering question (at least for me) is – What does it take to qualify someone to be an expert witness on child grooming?  A question for a later day I suppose.

Child Video Deposition

Videotaped Testimony of Child Sexual Abuse Victims Held Unconstitutional

By | Sex Crimes

Child Video DepositionLast week, the Texas Court of Criminal Appeals issued its opinion in Coronado v. State.

[The CCA] granted review of the case to determine whether the videotape procedures set out in [the Texas Code of Criminal Procedure] Article 38.071, Section 2, including the use of written interrogatories in lieu of live testimony and cross-examination, satisfy the Sixth Amendment rights of confrontation…

The case involved a six year-old child sexual abuse victim (who was three years-old when the abuse began) that the trial court determined was “unavailable” to testify in court because of the likelihood that she would suffer severe emotional trauma upon seeing the defendant.  Accordingly, the trial court allowed a neutral child interviewer to videotape an interview pursuant to Article 38.071, Section 2.  The defense counsel agreed to this procedure and propounded numerous questions for the interviewer to ask.  The defense counsel also agreed to allow the interviewer to ask follow-up questions that she deemed appropriate.  At trial, the videotaped testimony of the child was played to the jury in lieu of any live testimony by the victim.

The videotape procedures of Article 38.071, Section 2, were enacted prior to the Supreme Court’s decision in Crawford v. Washington.  Since that time, there has been a marked shift in confrontation clause jurisprudence in favor of a strict requirement of face-to-face live confrontation.  The lower appellate court, however, failed to cite (or even mention) the Crawford line of cases in its analysis.  The CCA, on the other hand, explained:

We are unable to find any post-Crawford precedent from any jurisdiction that states, or even suggests, that a list of written interrogatories, posed by a forensic examiner to a child in an ex parte interview, is a constitutional substitute for live cross-examination and confrontation…There was no “rigorous adversarial testing” of [the child victim’s] testimonial statements by that greatest legal engine for uncovering the truth: contemporaneous cross-examination.  The written-interrogatories procedure used in this case does not pass muster under our English common-law adversarial system or our United States Constitution.

The CCA’s reluctance to overturn this case was apparent.  On page 2 of the opinion, Judge Cochran writes, “On federal constitutional matters, we are obliged to follow the dictates of the United States Supreme Court regardless of our own notions.”

Judge Hervey concurred.  While she agreed with the majority that the procedure used in this case was unconstitutional, she wrote separately to express her opinion that the defendant’s right to confrontation should be balanced with the societal interest in protecting child sexual abuse victims.  She would not foreclose the possibility of allowing testimony via closed circuit television where the witness would testify in a separate room, but where the victim could still see the defendant and the jury.

Presiding Judge Keller dissented.  In a well-reasoned opinion, she explains why she believes that the confrontation clause was not violated in this case.  She calls this a “close case,” but she would have affirmed.

An Improper Jury Instruction Matters Not

By | Jury Trial

Texas Jury InstructionIt seems like all I write about anymore is the Court of Criminal Appeals reversing a Court of Appeals case and siding with the State. Well, this post is no different.

In Taylor v. State, the appellant was convicted of aggravated sexual assault and sentenced to 70 years confinement and a $10,000 fine for each offense. Much of the testimony at trial, however, related to acts appellant committed while he was a minor. The evidence showed that appellant began sexually abusing a young girl when he was 13 years old and she was 8. The abuse continued for several years, the final occurrence happening when appellant was 20 years old and the victim was 15.

Texas Penal Code Section 8.07(b) provides that unless a juvenile court waives (or has previously waived) jurisdiction and certifies an individual for criminal prosecution, “a person may not be prosecuted for or convicted of any offense committed before reaching 17 years of age.”  Accordingly, while evidence was admitted at trial regarding appellant’s acts before he turned 17, he can only be convicted of those acts that occurred after he was 17.

The trial court failed to instruct the jury of this requirement and the jury returned a guilty verdict. On appeal, appellant argued that the jury charges were erroneous because they did not limit the jury’s consideration to evidence of acts committed after he turned 17. The 1st Court of Appeals (Houston) held that the Court was required to instruct the jury that appellant could not be convicted of criminal acts committed before he turned 17, and that appellant was denied a fair and impartial trial as a result. The Court of Appeals reversed the case.

The CCA now reverses the Court of Appeals. It agrees with the Court of Appeals that the instruction should have been given to the jury, even if neither party requested the instruction. But the CCA held, nonetheless, that the error did not deprive appellant of a fair and impartial trial. The CCA states:

Here, the error was the omission of an instruction, rather than the presentation to the jury of an erroneous instruction…[T]he jury in this case could have convicted Appellant based upon evidence presented, even if the proper instruction had been given and Appellant’s pre-seventeen acts were disregarded by the jury. The evidence showed an eight-year pattern of escalating sexual abuse of J.G. by Appellant. Appellant turned 17 years old midway through the abusive period, meaning that he is subject to prosecution for his conduct beginning on that birthday…and evidence of molestation that occurred after that date was introduced at trial.

So, basically the CCA is saying – “We don’t know from the face of the record exactly which instances of abuse the jury believed, and we can’t say with 100% certainty that they believed any of the instances after appellant was 17, but we know they definitely believed something happened at some time.”

The CCA ultimately concludes that Appellant was not denied a fair and impartial trial. My question is – “How do we know that?” I realize that appellant said he didn’t commit any of the alleged acts and I also realize that the jury, by their verdict, believed that he did.  But how do we know that the jury didn’t conclude that the appellant was guilty of only those acts that occurred when he was a minor?  We don’t.